Boston Archdiocese Asks for Dismissal of All
Suits
By ADAM LIPTAK - December 24, 2002

The Roman Catholic Archdiocese of Boston asked a judge yesterday
to dismiss all the sexual abuse lawsuits against it on religious
freedom grounds.

The First Amendment, the archdiocese said, does not permit
courts to tell churches how to conduct their internal affairs,
including the questions of where to assign priests and how
to discipline them.

Bishop Richard G. Lennon, the archdiocese's interim leader,
said the motion to dismiss the suits, which number more than
400, did not indicate a change in his commitment to trying
to settle them. Rather, he said, the move was driven by the
archdiocese's insurers and by a motion-filing deadline set
by Judge Constance M. Sweeney of Suffolk Superior Court, who
is hearing the cases.

Bishop Lennon also renewed his request that lawyers for the
plaintiffs agree to a moratorium on further court proceedings
and on the exchange of information between the parties. That,
he said in proposing such a moratorium last week, would enable
the two sides to concentrate on reaching a settlement.

Legal experts said that the First Amendment approach had
little chance of success but that the archdiocese might well
have jeopardized its insurance coverage had it failed to pursue
any available arguments.

Jeffrey A. Newman, a lawyer for plaintiffs who say they were
victims of the Rev. Paul R. Shanley, expressed appreciation
for the explanation of the filing, and largely accepted the
archdiocese's reasoning.

"The concern existed on the part of the archdiocese,"
Mr. Newman said, "that filing the motion would inflame
an almost dangerously incendiary atmosphere by suggesting
it was not serious in trying to resolve these claims."

But Mr. Newman was unimpressed by the argument that the First
Amendment bars suits based on accusations of sexual abuse
and cover-ups. "They don't make sense," he said
of the First Amendment defenses, "to the extent you're
talking about actions as opposed to beliefs."

Mitchell Garabedian, who represents other plaintiffs, concurred.
"Child molestation qualifies as conduct that disturbs
the public order and thus is not entitled to constitutional
protection," he said.

Nor was either lawyer inclined to agree to a litigation moratorium,
though Mr. Newman said that if the archdiocese's insurers
were to make a significant offer, the pace of the litigation
might slow.

Legal experts said First Amendment defenses like those in
the new motion had met with some success in earlier cases.
But the defenses have little hope, they said, in the current
charged atmosphere.

"All of these claims do have a First Amendment implication
about how churches select, train and supervise clergy,"
said Douglas J. Laycock, a law professor at the University
of Texas who is an expert in the law of religious liberty.
"The churches have won a few, but they have lost a lot
more. It's not that they are clearly wrong arguments, but
they have had declining success over the years. And the courts
may not be immune to the incredible publicity of the last
year, either."

Arguments about religious freedom, he said, are more likely
to be accepted when the asserted abuses were isolated and
supervisors acted on limited information.

A number of courts around the country have held the church
immune from suit for the negligent hiring and supervision
of priests who engage in sexual abuse. In 1997, for instance,
the Wisconsin Supreme Court rejected a claim that the church
had negligently supervised a hospital chaplain who was accused
of sexually assaulting a woman. The court said it could not
decide the case without interpreting ecclesiastical law, particularly
the vow of celibacy. That, it held, would "excessively
entangle the court in religious affairs, contrary to the First
Amendment."

The majority of courts, though, have taken the opposite view.
In March, the Florida Supreme Court held that "the First
Amendment does not provide a shield behind which a church"
may hide when accusations of sexual abuse are made.

In Massachusetts, the courts have tried to distinguish between
matters of doctrine and harmful conduct. "The First Amendment
prohibits civil courts from intervening in disputes concerning
religious doctrine, discipline, faith or internal organization,"
the state's highest court held in 1985. In various cases since,
courts have sidestepped disputes about hiring and firing clergymen
and how churches govern themselves.

But they have not hesitated to decide suits concerning discrimination
by churches acting as landlords and about the use of drugs
in religious ceremonies. And they have shown special solicitude
for claims concerning the health and safety of children.

In 1999, in a decision in a case against John J. Geoghan,
the former priest whose case ignited the sexual abuse crisis,
Judge James F. McHugh rejected most of the First Amendment
arguments made anew yesterday. "The delicate balance
between the freedom to exercise religion and the demands placed
on all persons, clergy and others, to refrain from conduct
with harmful potential to others," Judge McHugh wrote,
"requires the courts to avoid sweeping, categorical decisions."

But he denied the motion, and legal experts say there is
little reason to think other judges will do otherwise.